October, 2015 Newsletter
Provided by Leimberg Information Services

“A father of a deceased child sought to have the cremated ashes of his son divided equally with his former wife who was the mother of the deceased child. The mother objected to the division on religious grounds. Both the Florida probate court and the appellate court held for the mother.

Similar results should apply in other states outside of Florida that follow the common law. While not a perfect solution, dispositive directions in the Last Will of decedents over disposition of remains can help reduce disputes over remains, especially in circumstances where a later dispute is possible, such as second marriage situations or when the children do not get along.”

We close the week with Chuck Rubin’s commentary on Wilson v. Wilson.

Charles (Chuck) Rubin, a board certified tax attorney, is managing partner of Gutter Chaves Josepher Rubin Forman Fleisher Miller PA, a tax, trusts and estates boutique law firm situated in Boca Raton, Florida (www.floridatax.com). He is an ACTEC fellow, and a former adjunct professor at the University of Miami School of Law. Chuck has published numerous treatises, manuals, and articles, including two BNA Tax Management portfolios, and articles in Journal of Taxation, Estate Planning, Tax Management Estates, Gifts and Trusts Journal, and Tax Notes. He also authors a popular tax blog at www.RubinonTax.blogspot.com, and speaks regularly at professional meetings and conferences, and was named 2015 Attorney of the Year by Best Lawyers in Tax Law for the Miami metropolitan region.

Here is his commentary:

EXECUTIVE SUMMARY:

An heir unsuccessfully asserts that the decedent’s cremated ashes are estate property that should be divided with the other property of the estate.

FACTS:

A father of a deceased child sought to have the cremated ashes of his son divided equally with his former wife who was the mother of the deceased child. The mother objected to the division on religious grounds. Both the Florida probate court and the appellate court held for the mother.

Florida law recognizes there is a legitimate claim of entitlement by the next of kin to possession of the remains of a decedent for burial or other disposition. However, the scope of that entitlement, especially when the decedent made no expression of desire as to the disposition of his or her remains and there is a dispute among the kin, is not well-defined.

To get around this uncertainty and obtain half of the ashes, the father posited that his son's ashes were "property" of the probate estate, and should be disposed of in accordance with the disposition of all of the decedent's property. Since he and the mother were the beneficiaries of their son's estate, the remains should be divided equally between them.

Florida Statutes §731.201(32) defines property for Probate Code purposes as "both real and personal property or any interest in it and anything that may be the subject of ownership." So, at first glance, it appears that bodily remains may fit within this definition. However, the Florida Supreme Court has articulated that the next of kin have no property right in the remains of a decedent. Kirksey v. Jernigan, 45 So 2d 188 (Fla. 1950); State v. Powell, 497 So 2d 1188 (Fla. 1986); Crocker v. Pleasant, 778 So. 2d 978 (Fla. 2001). The appellate court indicated that this position has deep roots in the common law, quoting Sir William Blackstone's Commentaries that heirs have no property interest in bodies or ashes of decedents.

Thus, the appellate court rejected the father's attempt to divide the ashes based on the ashes being property of the probate estate subject to division. This is not to say that the probate court, in exercise of its discretion in the matter, was without authority to divide the ashes - just that it could not be compelled to do so based on a property rights argument.

COMMENT:

Similar results should apply in other states outside of Florida that follow the common law. While not a perfect solution, dispositive directions in the Last Will of decedents over disposition of remains can help reduce disputes over remains, especially in circumstances where a later dispute is possible, such as second marriage situations or when the children do not get along.

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